United States of America v. Sandra Hatfield and David H. Brooks

November 22, 2011

UNITED STATES OF AMERICA,v.SANDRA HATFIELD AND DAVID H. BROOKS, DEFENDANTS.

The opinion of the court was delivered by: Seybert, District Judge:

MEMORANDUM & ORDER

Pending before the Court is the Government's motion for reconsideration of the Court's September 22, 2011 Memorandum and Order granting in part and denying in part the Government's motion for a preliminary order of forfeiture. For the reasons that follow, the Government's motion is GRANTED.

BACKGROUND

The Court assumes familiarity with the facts of this case but will briefly summarize the procedural history related to the forfeiture proceedings.

After conducting protracted non-jury forfeiture proceedings in November 2010 and accepting post-hearing briefs and reply submissions through April 2011, the Court issued a Memorandum and Order on June 14, 2011 ("June Order") (Docket Entry 1455), 2011 WL 2446430, granting in part and denying in part the Government's motion to enter a preliminary order of forfeiture. The Court granted forfeiture of the assets that Defendant David Brooks ("Brooks") obtained through the unauthorized compensation scheme, denied forfeiture of the $94,000 paid to WGH Consulting, and reserved judgment as to the exact dollar amount of the insider trading proceeds to be forfeited pending revised calculations and supplemental briefing.

In attempting to determine the amount of insider trading proceeds subject to forfeiture, the Court outright rejected two of the four studies (the event-based studies) presented by the Government's expert, Professor Lawrence Harris, as unreliable and criticized the remaining two studies (the discounted cash flow and P/E studies) for, inter alia, incorrectly accounting for the PACA inventory fraud, which did not occur until after Defendants' stock sales.*fn1 Thus, the Court ordered Professor Harris to recalculate forfeiture using only the discounted cash flow and P/E studies and omitting the PACA inventory fraud from the calculations. The Court stated:

[R]ather than disregard his discounted cash flow [and P/E] analys[es], the Court instead orders the Government and Professor Harris to provide revised calculations that apply the same methodology, but do not "correct" for a PACA fraud that had yet to occur. Professor Harris may use his reasoned judgment in deciding how best to accomplish this task (i.e., considering fraud in the fourth quarter of 2003 and thus the previous four reported quarters, extrapolating financial data from the first nine months of 2004, etc). And the Court will then use that revised analysis to order forfeiture.

June Order, 2011 WL 2446430, at *17, 18.

The Government submitted Professor Harris's supplemental report on July 11, 2011 ("First Supplemental Report"). These new calculations not only corrected the PACA fraud issue, as ordered by the Court, but they also incorporated additional changes that had nothing to do with the PACA fraud. While the Government submitted a short letter-brief with the First Supplemental Report, it did not address the substance or adequacy of the revised calculations at all.

Defendants submitted two oppositions to the First Supplemental Report: the first on July 15, 2011, objecting to the Court's reopening the record for a new expert report, and the second on July 27 and 29, 2011, requesting that the First Supplemental Report be stricken in its entirety for failing to comply with the Court's June Order and for incorporating unscientific assumptions. The Government was not permitted to file any reply.

On September 22, 2011, the Court dismissed the insider trading forfeiture claims ("September Order") (Docket Entry 1478), 2011 WL 4434219, stating that the Government "failed, yet again, to meet its burden of establishing ill-gotten gains by a preponderance of the evidence because Professor Harris's [First Supplemental Report] makes assumptions and adjustments . . . outside the limited discretion granted to him by the Court's June 14 Order, and these revisions are based on the same type of subjective opinions that the Court rejected in refusing to consider the results of the event driven studies." September Order, 2011 WL 4434219, at *4.

The Government filed the pending motion to reconsider the September Order on October 6, 2011, which included new revised calculations ("Second Supplemental Report") that addressed the Court's criticisms in the September Order. Defendants filed their opposition on October 12, 2011 (Docket Entry 1495), and the Government filed its reply on October 20, 2011 (Docket Entry 1497).

DISCUSSION

I. Standard of ...

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